Boosting anti-graft war through effective investigation

The Federal Government has succeeded in securing the conviction of some politically-exposed persons. However, there is still more to do. For two days, investigators drawn from various anti-graft agencies met in Lagos for a training organised by the Federal Ministry of Justice in collaboration with the Centre for Socio-Legal Studies (CSLS). They listed some challenges which they said must be addressed if the anti-graft war is to be successful. JOSEPH JIBUEZE was there.

Despite the successes recorded in the fight against corruption, there is a general consensus that more could have been achieved with better investigation of cases. The Federal Government recognises that there can be no successful prosecution without effective investigation as some high-profile cases have been thrown out by courts due to lack of proper investigation, according to theAttorney-General of the Federation (AGF) Abubakar Malami (SAN).

The government, he said, recognises the need to continuously train investigators.

It was in response to this that the Federal Ministry of Justice, in collaboration with the Centre for Socio-Legal Studies (CSLS), held a two-day training for investigators in Lagos.

Participants were drawn from the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Police and the ministry.

Investigators from the National Drug Law Enforcement Agency (NDLEA), the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) and the Nigeria Security and Civil Defence Corps (NSCDC) also participated.

The training, with support from the John D. & Catherine T. McArthur Foundation, featured four working sessions.

The topics included: Provisions in the Administration of Criminal Justice Act (2015) for expediting investigations; The use of technology in investigation; and Improving the effectiveness of anti-corruption agencies.

Others were: Investigating stolen assets: principles, practices, problems and lessons from other jurisdictions, and Principles and techniques of investigation.

According to Malami, who was represented by the Federal Justice Sector Reform Co-ordinating Committee (FJSRCC) Secretary Mr Felix Ota-Okojie, there is a gap between investigation and prosecution that must be filled.

He said: “There cannot be a successful prosecution without a thorough investigation. Our experience in this country has shown that it is the lacuna between investigation and prosecution that is responsible for the not-too-successful cases that we have witnessed.

“This has raised cause for concern from the public as to why the prosecutors are not able to secure conviction in cases that seem to be very obvious. This is why we must continue to work to see how we can bridge that gap, so that both investigation and prosecution can be effective.

“This training is in furtherance of the ministry’s leadership role in ensuring that we drive the process of implementing the ACJA, which if effectively implemented, will improve criminal justice in the country.”

Lagos State Attorney-General and Commissioner for Justice Mr Adeniji Kazeem underscored the critical role investigators play in the fight against corruption.

He debunked the notion that corruption is a victimless crime, emphasising that stolen resources are funds that can be used to reduce poverty and improve lives.

To him, investigators run the greater risk in the process of catching the corrupt; therefore, “huge amount of funds must be dedicated for their protection and welfare”.

He added: “Investigators are usually the best and brightest of any security organisation. They are the elite with the best analytical minds. As investigators, you are often the first line of defence against corruption as you have the responsibility to gather necessary evidence that will support the appropriate charges in court.

“The quality of evidence you produce, therefore, has tremendous effect on the decision to prosecute or not, because without a thorough and sound investigation, chances of a successful prosecution is low, irrespective of the skill or experience of the prosecutor.”

According to Kazeem, public corruption cases are often controversial, complex and require considerable resources and careful strategies.

He said the Lagos State Government was moving away from the analogue process of investigation to the application of scientific and forensic technology in combating crime.

“To enhance the quality of evidence collected during investigation, the state is equipping statement recording rooms in specific police stations in compliance with the Administration of Criminal Justice Law of Lagos State and in line with international best practices. This will soon come.

“As you may be aware, the government of Lagos commissioned the first Lagos State DNA and Forensic Centre in West Africa, to improve the quality of investigation and provide our prosecutors with best evidence in court.

“The DNA and Forensic Centre is equipped with world-class facilities, including a unit dedicated to toxicology. I recommend all stakeholders to visit and make use of this facility in the course of investigation,” Kazeem said.

CSLS President Prof Yemi Akinseye-George (SAN) said there was the need for a greater focus on investigators’ work, which he said would necessitate the establishment of minimum standards and guidelines, and monitoring and evaluation of performance.

He called for greater accountability for non-performance and low productivity; and for incentives, regular training opportunities and reward for exceptional performances.

“Those investigating high-profile corruption cases, for example, should be protected, well-resourced and insulated from the corrupting influence of moneybags and high-profile defendants who have all the resources to influence outcomes of investigations,” he said.

The eminent professor of law decried excessive reliance on confessional statements by investigators and prosecutors to win convictions, which he said causes delays due to trial-within- trials.

“It is pertinent to adopt new investigative trends which leverage modern technology and forensics,” Akinseye-George said.

ACJA provisions

Akinseye-George highlighted the ACJA provisions that facilitate investigation. For instance, he said Section 3 seems to suggest that a suspect may be arrested and then investigated.

“In our view, there is no hard and fast rule. Sometimes, arrest may come before investigation and sometimes investigation may come before arrest,” he said.

He noted that the ACJA contains several safeguards against unlawful arrests and investigations, which he said ensures speedy investigation.

According to him, the safeguards are: no unnecessary restraint (Sections 4 and 5), use of force in limited circumstances, the need to inform suspect of the reason for arrest (Section 6(1)), the need to inform suspects of their rights (to remain silent, consult a lawyer, and access to free legal representation), and the requirement to notify next of kin (Section 6).

Other safeguards, he pointed out, are the prohibition of arrest in lieu, humane treatment of arrested persons, speedy investigations (a person arrested or detained must be brought to court within 48 hours), among others.

Akinseye-George underscored notable improvements in the ACJA, such as the requirement to record information about arrested persons, the power to break a window or door during investigation (Section 12 (2), and use of audio-visual aid, of which investigators are expected to electronically record the writing of statements.

Use of technology in investigation

Investigators can get important leads through the Open Source, which is publicly available information that can be lawfully obtained by request, purchased or observation, according to an expert, Omolola Quadri, who was one of the resource persons.

She said information can be obtained from social media activities. Through carelessness or omission, people can reveal information about their location, for instance. Also, personal identities, addresses, phone numbers, email addresses, property records, payments information, among others, can also be obtained from such open sources, Quadri said.

According to her, investigators should make good use of databases, such as those kept by land registries, as well as private sources of digital evidence, which includes call logs, short messaging services sent and received, and contacts lists.

Quadri said investigators can obtain evidence through GPS. The location of a cell phone, she said, reveals the general area that corresponds to the radius of a cell tower’s coverage.

“If a suspect says he was in Bauchi at the date of the money transfer, his cell phone can reveal that he was actually in Asokoro and made a call from there,” she said.

Investigators, she added, may need to understand hash value functions, which enable them to verify that a forensic image of digital evidence has not been modified, as well as meta-data (information stored about another data).

She said e-mails are difficult to delete because other copies can be found in the sender’s server, receiver’s server and receiver’s hard drive even if the sender deleted it from their hard drive.

“Obtaining this level of information requires a specialised process of collection, preservation and analysis before its presentation for litigation,” she said.

Improving anti-corruption agencies’ effectiveness

Quadri noted that the government plays a key role in investigations. Without the political will, not much can be achieved, she said.

Therefore, there is the need for anti-graft agencies to be truly independent in their operations, in powers granted them through legislation, and in funding, she said.

“Including the traditional police power to search and arrest, the agency must be empowered to take additional steps such as checking bank accounts, intercepting telephone calls, demand that suspects declare their assets, require that suspects answer questions on oath, restrain property suspected to be proceed of corruption, and seize suspects’ travel documents to provent escape from the jurisdiction.

“However, this must be supported by an effective checks and balance system to prevent abuse of powers and right violations,” she said.

On funding, Quadri said investigating high profile corruption is not only time-consuming, but capital intensive.

“Expensive, highly intrusive measures may need to be adopted, such as telephone tapping, electronic surveillance, granting witnesses anonymity, engagement of undercover agents and sometimes, the simulated giving and acceptance of bribes.

“The use of digital technology is also required in many such cases and this does not come cheap,” she said.

Quadri said Nigeria needed an all-encompassing anti-corruption Act that explicitly identifies all corrupt acts that are criminally liable, adding that the law must establish liability for individuals and corporate entities.

There is also the need for an effective complaint system, she said, adding that the whistle blower policy must be strengthened.

Investigating stolen assets

Another speaker, Kehinde Oginni, said investigation was crucial to the recovery of stolen assets. Investigators, he said, must be prepared to face the challenge of tracing illicit funds effectively. “They must be tech savvy,” he said.

Oginni, a Special Adviser to Malami, said in investigating stolen assets, those connected to them must also be investigated, such as family members, associates and close allies.

For instance, he said in investigating former Plateau State Governor Joshua Dariye, investigators in the United Kingdom found that his children attended private schools in the UK, that he operated a Barclaycard account which was being paid off through the account of one Joyce Oyebanjo, and that he had 15 bank accounts holding not less than $2.3 million.

“The Mutual Legal Assistance sent to Nigeria established that an ecological grant was laundered by Dariye through numerous companies,” he said.

According to Oginni, asset tracking and investigation is complex and may require a multi-disciplinary investigation team involving intelligence officers, financial analysts, investigators and lawyers.

To function effectively, he said the team members must cooperate, one agency must provide clear strategic leadership; each agency must be assigned a clear role, and information must be shared promptly.

Investigative techniques

Another speaker, Chiamaka Anyaegbu, said before the commencement of an investigation, the investigator must create the suspect’s profile. According to her it is essential for investigators to collect and record all basic information related to the targets.

“Collect and record information that fully identifies the targets and also records any aliases used by the targets. Information should be maintained in an orderly manner within the investigators case folder for easy reference,” he said.

Anyaegbu said determining which investigative tools to use depended on a variety of factors, such as the nature of the alleged violations and the available resources.

He said investigation must progress from measures that do not alert the targets that they are under investigation, such as research of public databases, collection of public information, and informal interviews of potential witnesses that are not closely connected with the targets (informants), among others.

“It is always better to start from the basic, simple or covert techniques before implementing more complex techniques such as financial investigations and international cooperation before moving to overt techniques (e.g., search warrant) to avoid tipping-off the target,” he said.

Anyaegbu said evidence obtained must be subjected to validation through corroborative testimonial, forensic and documentary proof to overcome doubts.

Investigators, she said, must operate by the law. For instance, searches must be done by warrant obtained from a competent authority such as a judge, magistrate or Justice of the Peace in line with Section 146(1) of the ACJA.

As witnesses are key in any investigation, Anyaegbu called for the creation of a national programme on witness protection, adding that each law enforcement agency should have a standardised witness protection unit.

She said witnesses should be protected at all stage of proceedings.

“Efforts should be made to protect witnesses at every stage of the criminal process beginning with investigation, during conduct of trials and after until such protection is no longer required.

“The termination of protection should be done in a manner that would not jeopardise the interest of the witness.

“Where there is risk of threat to the lives of witnesses, safe house, hotel or such other alternative accommodation should be provided for such witnesses by the agency.

“Hence, the Attorney-Generals, law enforcement agencies, legislature, judicial authorities and other stakeholder in the administration of justice should provide support for the process of establishing a viable witness protection programme in the country,” Anyaegbu said.

Challenges to be addressed

One of the major challenges faced by investigators is the use of outdated methods. It was also observed that some investigators lacked the needed technological skills to unravel complicated financial crimes.

Other challenges include undue interference from superiors and lack of reliable database, lack of incentives.

Participants emphasised that undue interference by superiors was a major challenge.

Investigations being called off for no justifiable reason, they said, must be criminalised, while all forms of political interference must be discouraged.

Investigators also need better protection so that they are not victimised for sticking to principles or for refusing to call off an investigation they believe has merit.

With their lives at risk, participants regretted that there was no comprehensive life insurance for investigators.

There were experiences of investigators having to fund their travels, and buy needed materials themselves. Some have had to pay for their internet services, and have had to source for forensic investigative tools on their own.

They called for the strict monitoring of how money budgeted for investigations is applied, adding that there was the need to for independent funding of investigations if possible.

The issue of lack of cooperation by the public was also highlighted. Speakers said the fight against corrupt is seen as that of the government alone, with some giving ethnic and religious interpretations to the fight.

Lack of trust is also listed as a problem. Due to fear of victimisation, many are afraid to report crimes.

Also identified is a lack of awareness on modes of reporting crimes confidentially.

On lack of incentives, participants observed that investigators who achieve great feats are rarely commended let alone adequately rewarded or promoted, all of which kill morales.

Inter-agency rivalry was also identified as a major problem. Participants said there were instances of sister agencies withholding crucial intelligence because they do not want to be outshined.

Another challenge is lack of cooperation between investigators and prosecutors. It was observed that in several instances, some prosecutors would not know those who investigated the cases they are prosecuting.

Participants said effective communication between the prosecutor and investigator was key to successful investigations.

More challenges in need of solutions

Participants said the inadequate witness protection and welfare provisions that hamper investigations must be addressed. Key witnesses, they said, could back out if not well cared for and protected.

Another major challenge that must be tackled is corruption within anti-graft agencies. Contributors said every effort must be made to weed out corrupt elements within the system.

Investigators must also be well paid to reduce the temptation of being swayed by money.

Lack of adequate manpower is also a challenge. Participants said some investigators are overwhelmed with work that they end up doing shoddy jobs.

Poor knowledge of information technology is also a challenge. Some investigators were said to lack basic computer skills and cannot type their investigative reports themselves.

Delay in responding to Mutual Legal Assistance (MLA) requests was also identified as a problem. Sometimes, significant ground is lost due to lack of quick responses occasioned by legal and bureaucratic bottlenecks.

It was said that the fact that assets can take different forms make them very difficult to track. Difficulty can also arise from identifying beneficial owners of illicit assets.

Most stolen assets cases involve multiple jurisdictions, which creates barriers to effective interaction and cooperation of state intelligence gathering and law enforcement agencies.

It was also noted that the Bitcoin virtual currency can be used to launder proceeds of crime, and is seen as a great challenge to asset tracing and investigation.

Participants observed that the war against corruption would be more successful if anti-graft agencies were truly independent, accountable and well-funded, and backed by political will.